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Legally Speaking - Two-by-two

Dear Bob, In Eau Claire, Wisconsin, during a ride on the last Friday of last month, 17 cyclists were ticketed for violating the two abreast statue by claims that they were impeding traffic. The tickets stated that the violation was of state statute 346.80(3) — impeding traffic while riding two abreast.

The road was a six lane intercity highway with a speed limit of 35mph. Other traffic was not backed up behind the cyclists, but there was a steady flow of passing motor vehicles. The cyclists were contained within the right-most lane. The lane qualifies as a substandard-width lane. It was explained to Sgt. Weber that since it was a substandard lane width, riding two abreast within the lane does not impede the normal and regular flow of traffic, as a single cyclist would be entitled to the entire lane. He rejected that notion, telling the cyclists, “Bicycles are not traffic,” and wrote out twenty dollar tickets to the 17 cyclists. He also simplified the statute verbally, saying that bicycles cannot impede traffic. The cyclists have gotten a lawyer to defend them pro bono. Can you comment on the legality of the situation? Also, is there any way to help improve cyclist-police relations so they can proper enforce bicycle laws?
Thanks, Concerned Cyclist, Wisconsin

Dear C.C., It is comforting to hear that this group of riders was apprised of their rights even if they were unable to convince Sgt. Weber that they were riding within the law. When I first started riding on the roads of Wisconsin I wasn’t technically sure where I could legally ride and based on the treatment I received by drivers I quickly realized it didn’t matter- to survive, I just needed to stay out of everyone’s way. And that is what I did.

Things have changed since then. Cyclists are now even tolerated in some places. But like any change in society, there are those who cling to the former paradigm and refuse to accept the new. They might not display a button or bumper sticker proclaiming their view, but when given the chance, they will let you know how they feel about seeing you on a bike in the street. The ‘buzz pass’ and the ‘failure to yield – at the last possible moment’ are two examples of how some drivers show their feelings towards uppity cyclists. If you travel to new regions of the country to ride, you will quickly figure out how the locals feel about cycling. And if your rights are violated and you call the authorities seeking help, you will soon learn what the institutionalized attitude towards bikes is.

The theory is that as cycling’s popularity continues to rise and more people choose to travel by bike, more of society will accept our right to the road. This may be true but even as more people come to reluctantly tolerate cyclists, others continue to long for the good ole days when the motor vehicle’s supreme status went unchallenged. And some of these people are cops. These kinds of officers may not admit their anti-cycling prejudice in so many words, but when quoted in the media, they predictably shift responsibility for all ills on the road to those pesky cyclists who “don’t stop at stop signs” and ‘ride in the wrong direction’-even when those two scofflaw specialties were unrelated to the media inquiry. When they respond to a bike vs. motor vehicle collision they tend to find a way to blame the cyclist-often without even speaking to the injured rider before showing up at the hospital, ticket in hand. And when they see cyclists riding in a group, they pull them over and ticket them for violating a non-existent law. Now I don’t know if Officer Weber is of this camp or he just got the law wrong. But what do you do, as in this case, when you are riding legally and a police officer, such Sgt. Weber has, gets it wrong?

Okay, so I’ve said that Sgt. Weber is wrong on the law. Let’s take a little closer look at the law to find out why. In Wisconsin, cyclists may ride two abreast if they do not impede “the normal and reasonable movement of traffic.” Furthermore, cyclists riding two abreast must ride within a single lane. That describes what your group was doing, doesn’t it? You were riding two abreast, and you were riding within a single lane, as the law requires.

Now, the question is, was your group impeding traffic? According to Sgt. Weber, you were impeding traffic, and as he wrote out those tickets, he said “bicycles cannot impede traffic.” There are two issues here. First, what exactly does the law say about bicycles impeding traffic? And second, was your group actually impeding traffic? But before we even get to those issues, let’s first address Sgt. Weber’s statement that “bicycles are not traffic.” As in most states, under Wisconsin law, traffic is a very broad category of road users, including vehicles, pedestrians and even “ridden or herded or driven animals.” While any of these are “using any highway for purposes of travel,” they are traffic. So clearly, Sgt. Weber is wrong on that point.

But is that definition what the law means when it says that cyclists can’t impede traffic?

For an answer, let’s return now to the first issue raised: What does the law say about bicycles impeding traffic? In Wisconsin, cyclists who are riding at less than the normal speed of traffic “at the time and place and under the conditions then existing” are required to ride as close as practicable to the right-hand edge or curb of the road. As readers of Bicycling & the Law know, “practicable” means “reasonably capable of being accomplished.” Another way of looking at it is that the law is telling you that you must ride as close to the right-hand side of the road as is safe.

Note that the law does not specify that “traffic” means “motor vehicle traffic,” as Sgt. Weber is implying it means when he says that “bicycles are not traffic.” The law merely says that cyclists who are riding at less than the normal speed of traffic must ride to the right. As a practical matter, traffic that is moving at a faster speed than bicycles is probably going to be motor vehicle traffic. Nevertheless, under Wisconsin law, traffic clearly includes bicycles. And as an interesting aside, when the only “traffic” on a road is a club ride, and a motor vehicle comes up behind the club ride, what is the “normal speed of traffic” – that of the club, or that of the lone motor vehicle?

Clearly—well, perhaps not so clearly to those who harbor the mistaken view that “traffic” means “motor vehicle traffic”—“the normal speed of traffic” will be the prevailing speed at the time and place and under the conditions then existing, and that prevailing speed will be the speed of the club ride. While I don’t mean to imply that cyclists should disregard common courtesy to others, it’s clear that under the law, when the prevailing speed of traffic is the speed set by cyclists, they cannot be ticketed for failure to ride to the right. It should be just as clear to cyclists that, although not required, common courtesy should prevail when it’s safe to let other traffic past.

Returning to the requirement to ride to the right, there’s something else to take into account —not only does the law say that cyclists who are riding at less than the normal speed of traffic must ride as close as practicable to the right, it also specifies that the requirement applies to cyclists who are riding two abreast, as well. This is an interesting provision, because while the statute states that cyclists—including, the law specifies, cyclists riding two abreast—must ride to the right, it also specifies that there are exceptions to this requirement. And because the statutory requirement applies to cyclists riding two abreast, the exceptions to the requirement also apply to cyclists riding two abreast. And wouldn’t you know it, one of the exceptions is “When reasonably necessary to avoid unsafe conditions, including…substandard width lanes that make it unsafe to ride along the right-hand edge or curb.” So there you have it, straight from the Legislature: If the lane is of substandard width, cyclists riding two abreast are not required to ride as close to the right as practicable.

Now, that should be the end of the case, and in fact, that will probably be all you need to get the tickets dismissed. However, there is a second issue that was raised by these tickets that I’d like to address: Was your group actually impeding traffic? Seventeen cyclists were riding two abreast in the right-most lane on a six lane intercity highway, with a maximum speed limit of 35mph. Although there was a steady flow of passing motor vehicles, they were not backed up behind the cyclists, and were able to pass the cyclists legally, and presumably, safely, with little or no delay. Under those circumstances, would any reasonable person believe that traffic was actually being impeded? As I discussed in From Tombstone to Dodge, the law contemplates that there are three conditions that must be satisfied in order for cyclists to actually be impeding traffic: First, cyclists must be present on the road and riding two abreast. Second, the road conditions—for example, the speed limit, the width of the lane, the presence of a double yellow line, the volume of traffic, etc.— must be such that other traffic will be impeded if cyclists are present and riding two abreast. And third, other traffic must actually be present.

In your case, both cyclists and other traffic were on the road; however, road conditions were such that traffic was not actually impeded by the presence of cyclists riding two abreast. Therefore, it appears that Sgt. Weber was laboring under the belief that your group was potentially impeding traffic, and, as I noted in From Tombstone to Dodge, to interpret the law to mean that impeding traffic can mean the potential to impede traffic would be to read the two abreast provision out of the law. Because we know that the Legislature intended that both the impeding traffic part of the statute as well as the two abreast part of the statute be given full effect, we also know that Sgt. Weber’s interpretation is not consistent with the meaning of the law.

Now, here’s the thing you will want to remember at trial: Whether or not your group was actually impeding traffic should be irrelevant. Even if your group was impeding traffic, you were not in violation of the law, because the law does not require cyclists who are riding two abreast to ride to the right when the lane is of substandard width—even if traffic is being impeded!

But what about that law that says that cyclists may ride two abreast if they do not impede traffic? Doesn’t that mean that they have to ride single file, if they are impeding traffic? Normally, yes. But when the lane is of substandard width, the cyclists are not impeding traffic by riding two abreast, because traffic would be impeded even if they were riding single file. It’s the substandard width lane, and not the two abreast formation, that’s impeding traffic, and thus, the requirement to ride single file is not applicable.

Nevertheless, your group was not impeding traffic. Between your argument that the law does not require cyclists who are riding two abreast to ride to the right when the lane they are riding in is of substandard width, and your argument that you were not actually impeding traffic in any event, you should be able to get your citations dismissed.
Finally, you asked “is there any way to help improve cyclist-police relations so they can properly enforce bicycle laws?” In Bicycling & the Law, I suggest that one of the ways to overcome law enforcement bias is to help introduce bicycle law education into law enforcement agencies. I would recommend opening a dialogue with the brass at the law enforcement agency about doing just that. For guidance, you might want to talk with the San Francisco Bicycle Coalition, which worked in partnership with the San Francisco Police Department to produce an innovative police training video.

Good luck, Bob

(Research and drafting provided by Rick Bernardi, J.D.)

I’d like to thank everybody who has contacted me to request my appearance at their event. I will be speaking as extensively on "Bicycling & the Law" this year as my practice will allow, and will make plans to appear before any club, bike shop, or other engagement that is interested in hosting me. If you would like me to appear to speak at your event or shop, or to your club or group, please drop me a line at bookbob2speak@gmail.com (and if you would like to contact me with a question or comment not related to my speaking tour, please drop me a line at mionskelaw@hotmail.com). I’m looking forward to meeting as many of my readers as possible this year.

Now read the fine print:

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.

If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

Important notice:

The information provided in the "Legally speaking" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.